Lecture 5 – Leases
I. PRETENCE:
Hallmark characteristics of a tenancy – does the occupier have EP for a term, at a
rent and an agreement granted using relevant formalities. If they do then at first
glance they will be regarded as tenants. Not always the case that on the face of the
agreement, if EP has not been granted, e.g. the landlord says they will provide
services to you daily, that it looks like you are a licensee or a lodger. In these types
of cases you look to see whether the agreement is a pretence or not.
Question here is: are these terms of the agreement (which on their face deny the
occupier EP), intended to be enforced? Subjective intention of the parties.
Another way of saying this: ask yourself are these terms genuine or not? Rule of
thumb. S v M LT says the courts should be astute to detect and frustrate sham
devices and artificial transactions. This is because what these devices do is to drive
a coach and horses through the protection given to tenants. If you are granted a
license instead of tenancy, you don’t get all of this protection.
In Antoniades, Lord Templeman says ‘I wish I hadn’t used the word Sham’. I wish I
had said pretence instead. Opposite of genuine. If it is a pretence, it is not genuinely
intended to be enforced.
E.g. of pretence: Aslan and Murphy: by the terms of the room rental, occupier
required to give up room for 90 minutes a day. Also says the occupier has to
share the room with any person that the licensor introduces. On their face
those terms deny the occupier EP very clearly. Was this a tenancy or a
license. Lord Donaldson says these provisions were clearly pretences. The
room is tiny, and you’re expecting the landlord to be able to introduce
someone else? This would have been impossible. The 90-minute clause was
not enforced.
E.g. of pretence: Antoniades and Villiers: Clause 16 says landlord can
introduce any other person they (landlord) wants. HOL says this is a pretence.
They go beyond agreement and look at all circumstances. Property only
suited for a couple. Clause 16 was clearly a pretence, not genuinely intended
to be exercised.
Bankway Properties v Pensfold Dunsfold:
Grant of a tenancy by B to P. Rent starts at £4000 odd, agreement says it will then
go up to 25000. They knew the housing benefits would never pay that much. But
I. PRETENCE:
Hallmark characteristics of a tenancy – does the occupier have EP for a term, at a
rent and an agreement granted using relevant formalities. If they do then at first
glance they will be regarded as tenants. Not always the case that on the face of the
agreement, if EP has not been granted, e.g. the landlord says they will provide
services to you daily, that it looks like you are a licensee or a lodger. In these types
of cases you look to see whether the agreement is a pretence or not.
Question here is: are these terms of the agreement (which on their face deny the
occupier EP), intended to be enforced? Subjective intention of the parties.
Another way of saying this: ask yourself are these terms genuine or not? Rule of
thumb. S v M LT says the courts should be astute to detect and frustrate sham
devices and artificial transactions. This is because what these devices do is to drive
a coach and horses through the protection given to tenants. If you are granted a
license instead of tenancy, you don’t get all of this protection.
In Antoniades, Lord Templeman says ‘I wish I hadn’t used the word Sham’. I wish I
had said pretence instead. Opposite of genuine. If it is a pretence, it is not genuinely
intended to be enforced.
E.g. of pretence: Aslan and Murphy: by the terms of the room rental, occupier
required to give up room for 90 minutes a day. Also says the occupier has to
share the room with any person that the licensor introduces. On their face
those terms deny the occupier EP very clearly. Was this a tenancy or a
license. Lord Donaldson says these provisions were clearly pretences. The
room is tiny, and you’re expecting the landlord to be able to introduce
someone else? This would have been impossible. The 90-minute clause was
not enforced.
E.g. of pretence: Antoniades and Villiers: Clause 16 says landlord can
introduce any other person they (landlord) wants. HOL says this is a pretence.
They go beyond agreement and look at all circumstances. Property only
suited for a couple. Clause 16 was clearly a pretence, not genuinely intended
to be exercised.
Bankway Properties v Pensfold Dunsfold:
Grant of a tenancy by B to P. Rent starts at £4000 odd, agreement says it will then
go up to 25000. They knew the housing benefits would never pay that much. But
